Colen v. Gladding, McBean & Co.

MELVIN, J.

This is an appeal by plaintiff from a judgment entered after the court had sustained a demurrer to the third amended complaint.

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The complaint which was last filed recited that the defendant corporation was erecting and installing the terra cotta work on a building belonging to defendant Phebe A. Hearst and located at the corner of Third and Market streets in the city and county of San Francisco; that on January 5, 1911, Gladding, McBean & Co., the said corporation, was engaged in said work “with the knowledge and consent” of Mrs. Hearst and under her direction, and at the same time other contractors and workmen were, with the knowledge of the defendant corporation and the “knowledge and consent” of Mrs. Hearst engaged in other work on the building; that Gladding, McBean & Co. had caused a temporary elevator to be erected in a light well of the building; that this elevator was used for hoisting material; that there was no top provided for the elevator and no guards had been built around the light shaft in which it was operated; that on January 5, 1911, plaintiff, who was in the employ of Gladding, McBean & Co., was at work in the elevator, loading material therein, when he was struck by a piece of wood which from some cause unknown to him was precipitated into the shaft, and that “because of the uncovered condition of said elevator” the falling timber caused his serious injury for which he demanded damages.

There were three grounds of demurrer: 1. That the complaint did not state facts sufficient to constitute a cause of ■action; 2. That two causes of action had been improperly joined; and 3. That there was a misjoinder of parties defendant.

Upon the general demurrer the corporation respondent contended that failure to inclose the roof of the elevator was not negligence; that the proximate cause of the injury was not the condition of the elevator but the throwing down of the timber—an act not imputed to the corporation; and that from the pleading itself it appears that the plaintiff assumed the risk of working in an uncovered elevator. As we think that the general demurrer was properly sustained we need not discuss the other grounds of demurrer.

It is not actionable negligence to fail to sheath or cover a temporary - elevator such as that described in the complaint before us. It was employed not for the transportation of passengers, but merely for the hauling of material for use